Too indequate to meet the challenge
Cabinet clears Judicial Appointments Commission Bill
The fearless and independent judiciary, power of judicial review, and separation of powers are the three cornerstones of judiciary in India. From the judiciary which understood the compulsions of the executive in the nation building process in the 1930s and 1940s, to an assertive judiciary in 1960s, transforming into a judiciary committed to social philosophy of the ruling party, to an activist judiciary expanding its own jurisdiction and coming to the aid of the poor and the downtrodden sections of the society, the environment and in protection of individual liberties- the judiciary has witnessed various phases of growth and transformation .
Hence repeated efforts have been made to protect this fearlessness and independence of the judiciary. Appointment and transfer of judges has been a cause of concern. Hence various mechanisms have been evolved for this purpose. The collegium system is presently in place but due to its shortcomings, efforts are being made to replace it by a more structured and constitutional commission.
Collegium system: Lack of transparency
The collegium for appointment of higher judiciary consists of the Chief Justice of India and the four senior most judges of the Supreme Court.
Article 124 of the Constitution of India lays down that every judge of the Supreme Court shall be appointed by the President of India after consultation with such of the judges of the Supreme Court and of the High Courts in the states.
Article 217 of the Constitution of India lays down that every judge of the High Court shall be appointed by the President after consultation with the Chief Justice Of India, Governor of the State and Chief Justice of High Court.
SC held in AOR case that consultation of Chief Justice of India would actually mean a binding consultation on the Government. But giving too much power to one individual was not correct and even the colleagues resented it. There were many cases in which the views of senior colleagues was often disregarded, arbitrary appointments were made without consulting others. Hence the “consultation of 1993 judges case” transformed itself into a more structured collegium in 1998. But lack of transparency and a proper criterion were the problems that plagued this system. The Chief Justice of India belonging to a particular High Court naturally had considerations towards it. Cases were seen when many outstanding judges of High Court were not elevated to Supreme Court or that their appointment to the apex court got delayed till the then Chief Justice of India retired. The decisions of appointments and transfers of the collegium of High Court were also tainted with individual preferences and the accommodations. Hence it was said that the collegium is as good as the members of that collegium. Under the present collegium system, the executive has officially no say in the appointment of judges of Supreme Court and High Courts and the recommendations of the collegium are final and binding on the Government. India is among the few countries where judges appoint themselves, judges are accountable to themselves without being accountable to any other authority.
Impeachment: Its impossibility
Impeachment has become an impossibility in India. The concerned judge either resigns or retires till the impeachment comes in its third or the final phase. The case of Justice PD Dinakaran had charges of corruption and judicial misconduct against him and subsequent impeachment proceedings were initiated against him. He was transferred to Sikkim High Court and eventually resigned but could not be impeached.
Subjectivity has to be replaced by objectivity. In this post December 2013 era where this vibrant democracy has seen changes in the criminal law and huge public participation in formulation of the new law with more than eighty thousand suggestions to the JS Verma Committee, there should not be any haste and adhocism in formulation of new laws. All stakeholders should be consulted-the relevant stake holder herein being the Chief Justice and former chief justices, judges, advocates, bar associations, bar councils and even litigants etc.
The Judicial Appointments Commission Bill
Hence in an endeavour to bring more transparency and objectivity in the appointment and transfer of judges, the Judicial Appointments Commission Bill has been passed by the Cabinet which grants constitutional status to a proposed commission for appointment and transfer of judges to the higher judiciary to ensure that its composition cannot be altered through an ordinary legislation.
According to the proposal, while new Article 124A of the Constitution of India will define the constitution of JAC, Article 124B will define its functions. While Constitutional Amendment Bill requires 2/3rd majority for passage in the House, a normal legislation needs a simple majority.
However JAC is also riddled with problems. Its composition consists of Chief Justice of India, two senior most Supreme Court judges, law minister, two eminent persons, and justice secretary as convener. Hence JAC consists of three judges and other three members from the executive. The two eminent persons are to be selected by a collegium comprising of PM, leader of Opposition in the Lok Sabha and Chief Justice of India. This tilts balance in favour of political class. For example Central Vigilance Commissioner PJ Thomas was appointed despite opposition from Leader of Opposition Smt. Sushma Swaraj. He had to be appointed by President on the recommendation of a committee comprising of PM, Home Minister, Leader of Opposition in the Lok Sabha. But despite opposition by Smt. Sushma Swaraj as a CBI case was pending against him and there were integrity issues, his appointment was made. This appointment was eventually struck down by the Supreme Court. Thus these dangers can arise and the will of the political class may prevail over Chief Justice of India. Further there is no representation from the Bar i.e. Advocates.
Clause 124A(2) provides for a residuary clause “such other matters as maybe considered necessary” has given vast and unfettered powers to the Parliament on judicial appointments. Supreme Court held in CEC versus Jan Chaukidar Case that a person in police custody cannot contest elections. In Lilly Thomas versus Union of India, the apex court held that three month window for a convicted MLA/MLC/MP to appeal without disqualification is unconstitutional. But the political class did all that was within its might to circumvent it. Political class is often united when it comes to their self interest. This was seen in the issue regarding applicability of RTI Act to political parties. Thus aforesaid constitutional amendment is seen by some to undermine the independence of judiciary.
In this era of judicial activism when the judiciary is often alleged to be usurping the powers of the executive, voices are raised that judicial activism should be exercised with caution and restraint. Many sections of the society are of the view that the judiciary is going overboard and occupying the vacuum due to the inability of the executive to fulfill its functions and responsibilities. Judiciary lays down guidelines which become the law. However many orders of many judges have raised several questions and eyebrows regarding their appropriateness and timing. The desire of post retirement benefits have influenced the pre-retirement judgments which is an extremely dangerous trend. Hence the proposed Bill on Judicial appointments drafted to overcome the arbitrariness and lack of transparency of the collegium system should not fall prey to executive interference and political appointment of judges.
Former Chief Justice of India AP Barucha frankly admitted that there was corruption in the ranks of judiciary to some extent. In the words of the President of Supreme Court Bar Association, Krishnamani, “a clerk is punished for minor misconduct, but there is no provision to punish the judges for their misconduct.” He further stated that the Bill was too inadequate to meet the challenges. But as is said that the system is as good as the members of the system. What lays ahead will be keenly watched. The struggle for supremacy between judicial system and executive is here to stay.
(The writer is an advocate in Delhi High Court)
Law intern sexual harassment case:
The process for removal of Justice AK Ganguly as the head of West Bengal Human Rights Commission chief moved a step forward with the Union Cabinet approving a proposal for sending a Presidential reference to the Supreme Court on the issue. The Cabinet approved the proposal of the Home Ministry on sending the reference for a probe into allegation of sexual harassment against the retired apex court judge. The proposal will be sent to President Pranab Mukherjee who will then send the matter to the Chief Justice of India seeking a probe into the issue based on the three points raised in the reference. As part of the proposal, the Home Ministry had placed the views of Attorney General G E Vahanvati who has noted that a case can be made out against Ganguly following allegations of “unwelcome behaviour” towards a woman law intern, sources said. The Attorney General’s suggestions came after his views were invited on a letter to the President by West Bengal Chief Minister Mamata Banerjee seeking Ganguly’s removal as chairman of West Bengal Human Rights Commission following the intern’s allegation of sexual harassment. Besides the sexual harassment, Justice Ganguly is charged with visit to Pakistan without seeking prior clearance from the State Government; and his accepting an assignment of arbitration from a private party, the All India Football Federation, while holding a public office as WBHRC chairman. Justice Ganguly has strongly denied the charge and refused to quit his post.